THE I^CALL OF 
THE JUDICIARY 
IN CALIFORNIA 


A Summary of Reasons Against Recalling Judges 
at Popular Elections 


WILLIAM DENMAN 

of the San Francisco Bar 


PREPARED FOR AND DELIVERED BEFORE THE COMMONWEALTH 
CLUB JUNE 14, 1911. 



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THE RECALL OF 
THE JUDICIARY 
IN CALIFORNIA 

A Summary of Reasons Against Recalling Judges 
at Popular Elections 


Bp WILLIAM DENMAN 

of the San Francisco Bar 


PREPARED FOR AND DELIVERED BEFORE THE COMMONWEALTH 
CLUB JUNE 14, 1911. 


1911 

The Recorder Printing and Publishing Co. 
San Francisco 





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THE RECALL OF 
THE JUDICIARY 
IN CALIFORNIA 


A Summary of Reasons Against Recalling Judges 

at Popular Elections 


The most important of the constitutional amendments to be voted 
on by the peopie at the special election to be held October 10, 1911, is 
that invoiving the initiative, referendum and recall, with particular refer¬ 
ence to the latter as applied to the Judiciary. 

This amendment was the subject for discussion at the last monthly 
meeting of the Commonwealth Club. At this meeting Assemblyman W. 
C. Clark of Oakland, Senator Lee C. Gates of Los Angeles, Francis J. 
Heney and John Haynes of Los Angeles, spoke in favor of the recall as 
applied to the judiciary, wh-ile William Denman, Robert M. Fitzgerald and 
Warren OIney Jr. argued against it. 

Mr. Denman’s argument summarized the points against the recall, and 
is as follows: 


I 


By william DENMAN. 

Prepared for and delivered before the Commonwealth Club, 

June 14, 1911. 

We all agree that an unfit judge should be recalled. We are 
in disagreement as to the method. Three ways of accomplishing the 
result have been considered—the recall by the governor, by the legis¬ 
lature and by popular election. 

At the present time a judge may be removed by the legislature 
without impeachment proceedings by a simple joint resolution, upon 

— 3 — 





_-4 — 


a two-thirds vote. This has not been efficacious in the past, because 
under the old convention system the “interests” owned the legislature. 
We are certain that now, under the direct primary, we shall have the 
same class of independent and able (if not always logical and con¬ 
sistent) legislators we had at the last session. We think that it is 
through that body, where the matter can be carefully sifted, that the 
people should obtain their purification of the courts. 

We believe that a popular election is not the proper place to 
determine whether a judge should be recalled: 

1. Because he is required by his oath to try cases before him 
according to law, even if the law’s provisions be unwise. The deter¬ 
mination whether the law’s provisions are unwise and should be 
amended by the legislature, or the decision of the judge is an abuse of 
the law for which he should be recalled, is a question for experts and 
can no more be solved at a popular election than a question of strength 
of materials in building the City Hall, or of the skill of a physician 
in treating a complicated gunshot wound. For instance, it is safe to 
say that no layman within the sound of the reader’s voice can hon¬ 
estly say whether the law was at fault, or the court, in the Schmitz 
decision. 

2. Because the best that can be expected of even a wise law 
is that it will bring about substantial justice in a majority of cases. 
Even the wisest laws will work substantial injustice, from 
humanity’s standpoint, in some cases. For instance, the millionaire’s 
foreclosure of a mortgage for a thousand dollars, which throws the 
aged widow of a respectable workman out of her cottage and sends 
her to the poor-house, cannot be regarded as substantial justice from 
the standpoint of common humanity. Nevertheless, the law of 
mortgage must be upheld, or our whole system of credit will fall. 
This is a gross instance of what constantly happens in a much more 
subtle way in the decisions of courts. The question of whether the 
special violation of substantial justice in enforcing a good law is 
inevitable or due to an impropriety on the judge’s part, is an expert 
question and cannot be solved at a popular election. 

3. Because judges are human beings. We must take them as 
they are. If they are subject to the likelihood of facing a recall 
election for an unpopular decision, a considerable percentage will 
be influenced by those politicians and newspapers who most influence 
elections. We know that such politicians and such papers are often 
opposed to the best interests of the public. 


— 5 — 


4. Because a man who is a deep student of men and codes, and 
possesses a real judicial temperament, rarely has the gift of stump 
speaking necessary to make his case before the people in a recall 
campaign, even if the electorate had the expert knowledge to under¬ 
stand the distinctions he is attempting to make. 

5. Because the judicial office is very little in the public eye. 
The conspicuous decision of an unpopular nature in such cases as 
are referred to will outweigh years of quiet, conscientious public ser¬ 
vice, all the better because accomplished in an inconspicuous manner. 
While the law is not an exact science in the sense of mathematics or 
physics, it is a complicated science requiring quiet expert research and 
a highly developed special knowledge as well as a broad sympathy 
and understanding of human nature. 

6. Because, in order to give permanency to our institutions, our 
governmental organization is based on a written constitution. It is 
the duty of the judge to determine the constitutionality of many 
questions of a quasi-political nature, which affect many different fac¬ 
tions. In the heat of such struggles a combination of factions could 
be easily arranged to recall the judge while the orderly and more 
conservative procedure of amending the constitution will be ignored. 
The recall at popular election would make the courts a forum of 
popular political controversy rather than a judicial tribunal. 

7. Because, viewing the last objection from another angle, if 
it is the desire to take from the courts the power to declare acts of 
the legislature void as unconstitutional, then this should be done 
directly and honestly by amending the constitution and declaring that 
the legislature should be the final judge of the constitutionality of its 
own acts. It should not be done indirectly and dishonestly by hold¬ 
ing a club over the heads of the judges. 

8. Because in California one of the principal evils in our 
judicial system no longer exists, i. e., the election of a judge on a 
partisan ticket. He will no longer feel bound to decide these con¬ 
stitutional political questions in favor of the party which has seated 
him upon the bench. (Statutes 1911, ch. 398.) 

9. Because in California another glaring evil of our judicial 
system has been removed, i. e., the nomination of judges in political 
conventions where their choice was often neglected entirely by the 
delegates, who were interested chiefly in the more engrossing execu¬ 
tive and legislative offices, and where the judges were as often 


— 6 — 


selected by the boss or the interests he represented. (Statutes 1911, 
ch. 398.) 

10. Because none of the progressive governments of modern 
times having a non-partisan judiciary—such as Switzerland, Great 
Britain, New Zealand, Australia, nations that have had for twenty 
years the reform legislation we are just initiating—have ever sug¬ 
gested the recall of the judiciary at a popular election. 

1 1. Because for the first time in the history of the state we 
have strong and independent legislators, elected after a direct pri¬ 
mary and free from the control of the convention bosses. Such a 
tribunal could give the question of recall an expert hearing and arrive 
at a fair and practical result. It is not hampered by any of the 
technicalities of an impeachment proceeding. It may remove on a 
joint resolution receiving a two-thirds vote, a smaller proportion than 
is required for a jury verdict in an ordinary civil case. 

If the question becomes one for a popular election, the legislature 
will feel no responsibility. Just as the last legislature ignored 
charges of a most damaging nature against certain members of our 
courts because it felt that in all likelihood they would be decided at 
a recall election to take place this fall, thus doing the accused judges 
a gross injustice if the charges were false, or the people a gross 
injustice if they were true. 

12. Because the measure is entirely out of harmony with that 
other constitutional amendment passed by the same legislators, talking 
from the people the right to elect the members of the most powerful 
judicial tribunal in the state—a tribunal whose single adjudication 
affects the common man in more ways than a hundred Supreme Court 
decisions—the Railroad Commission. Not only is the election of the 
members of this judicial tribunal taken from the people and its 
members made appointive by the governor, but they are not included 
in the provisions of the recall amendment and cannot be removed by 
the legislature by joint resolution, as are the judges. 

On the plea of making the judges of the Supreme Court free 
from the Southern Pacific Railroad, we are asked to elect them by 
popular vote and subject them to a recall at a popular election. On 
the plea of making the railroad commission—^which is the court in 
whose adjudications the Southern Pacific is now chiefly interested— 
free from that corporation, we are asked in the same breath to take 
from the people the right to elect them and to deny to the people the 


_ 7 -- 


power to recall at popular election. In other words, the Southern 
Pacific will control our Supreme Court unless we apply to it the 
popular election and the popular recall, and the Southern Pacific will 
control the railroad commission unless we deny to it popular election 
and popular recall. 

Perhaps we can now understand what Senator Works meant by 
“reform run mad”. Happily other excellent enactments of this 
session of the legislature are not marred by such inconsistency. 

1 3. Because a self-respecting candidate will hesitate to run in the 
recall election under the law as framed. Under the law there is no 
vacancy unless a majority vote is polled to recall the incumbent. The 
new candidate’s name goes on the same ballot that settles the recall— 
that is to say, he becomes a candidate for a position that is not 
vacant. A man might spend weeks canvassing the state, obtain a 
plurality of votes and beat all his opponents, and still not be elected 
because there is no vacancy on account of the failure to recall the 
incumbent. 


To sum it up, the settlement of the necessity for recalling a 
judge at a popular election calls on the average voter to make a 
decision he has not the special knowledge to make. It places the 
incumbent in fear of removal by men without the time or the special 
information or training necessary to give him a fair hearing. It would 
make weak judges weaker, and deter strong and self-respecting men 
from becoming candidates for the bench. 


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